Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land.
Trespass to the person historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and false imprisonment. Through the evolution of the common law in various jurisdictions, and the codification of common law torts, most jurisdictions now broadly recognize three trespasses to the person: assault, which is "any act of such a nature as to excite an apprehension of battery"; battery, "any intentional and unpermitted contact with the plaintiff's person or anything attached to it and practically identified with it"; and false imprisonment, the " or of freedom from restraint of movement".
Trespass to chattel does not require a showing of damages. Simply the "intermeddling with or use of … the personal property" of another gives cause of action for trespass. Since CompuServe Inc. v. Cyber Promotions, Inc., various courts have applied the principles of trespass to chattel to resolve cases involving unsolicited bulk e-mail and unauthorized server usage.
Trespass to land is today the tort most commonly associated with the term trespass; it takes the form of "wrongful interference with one's possessory rights in property". Generally, it is not necessary to prove harm to a possessor's legally protected interest; liability for unintentional trespass varies by jurisdiction. " common law, every unauthorized entry upon the soil of another was a trespasser"; however, under the tort scheme established by the Restatement of Torts, liability for unintentional intrusions arises only under circumstances evincing negligence or where the intrusion involved a highly dangerous activity. In criminal law, trespass is often an element of offences such as burglary.
Trespass has also been treated as a common law offense in some countries.
Trespass to the person
There are three types of trespass, the first of which is trespass to the person. Whether intent is a necessary element of trespass to the person varies by jurisdiction. Under English decision, Letang v Cooper, intent is required to sustain a trespass to the person cause of action; in the absence of intent, negligence is the appropriate tort. In other jurisdictions, gross negligence is sufficient to sustain a trespass to the person, such as when a defendant negligently operates an automobile and strikes the plaintiff with great force. "Intent is to be presumed from the act itself." Generally, and as defined by Goff LJ in Collins v Wilcock, trespass to the person consists of three torts: assault, battery, and false imprisonment.Assault
In various common law jurisdictions, assault is both a crime and a tort. Generally, a person commits criminal assault if they purposely, knowingly, or recklessly inflict bodily injury upon another; if they negligently inflict bodily injury upon another by means of dangerous weapon; or if through physical menace, they place another in fear of imminent serious bodily injury. A person commits tortious assault when they engage in "any act of such a nature as to excite an apprehension of battery ".In some jurisdictions, there is no requirement that actual physical violence occurs, simply the "threat of unwanted touching of the victim" suffices to sustain an assault claim. Consequently, in R v Constanza, the court found a stalker's threats could constitute assault. In Australia, NSW v Ibbett, the Court of Appeal upheld the trial judge’s findings and increased the damages awarded, after the police pursued a suspect to a house where he lived with his mother, produced a gun and gave her directions, which greatly scared her. The court found that it was enough to justify the criteria of an immediate apprehension of harm, to an extent that amounted to assault. Similarly, silence, given certain conditions, may constitute an assault as well. However, in other jurisdictions, simple threats are insufficient; they must be accompanied by an action or condition to trigger a cause of action.
Incongruity of a defendant's language and action, or of a plaintiff's perception and reality may vitiate an assault claim. In Tuberville v Savage, the defendant reached for his sword and told the plaintiff that " it were not assize-time, I would not take such language from you". In its American counterpart, Commonwealth v. Eyre, the defendant shouted " it were not for your gray hairs, I would tear your heart out". In both cases, the courts held that despite a threatening gesture, the plaintiffs were not in immediate danger. The actions must give the plaintiff a reasonable expectation that the defendant is going to use violence; a fist raised before the plaintiff may suffice; the same fist raised behind the window of a police cruiser will not.
Battery
Battery is "any intentional and unpermitted contact with the plaintiff's person or anything attached to it and practically identified with it". The elements of battery common law varies by jurisdiction. In the United States, the American Law Institute's Restatement of Torts provides a general rule to determine liability for battery:Battery torts under Commonwealth precedent are subjected to a four point test to determine liability:
- Directness. Is the sequence of events connecting initial conduct and the harmful contact an unbroken series?
- Intentional act. Was the harmful contact the conscious object of the defendant? Did the defendant intend to cause the resulting harm? Though the necessity of intent remains an integral part of Commonwealth battery, some Commonwealth jurisdictions have moved toward the American jurisprudence of "substantial certainty". If a reasonable person in the defendant's position would apprehend the substantial certainty of the consequences of his actions, whether the defendant intended to inflict the injuries is immaterial.
- Bodily contact. Was there active contact between the bodies of the plaintiff and the defendant?
- Consent. Did the plaintiff consent to the harmful contact? The onus is on the defendant to establish sufficient and effective consent.
False imprisonment
the restraint must be complete, though the defendant needn't resist.
Conveniently, the American Law Institute's Restatement of Torts distills false imprisonment liability analysis into a four-prong test:
- The defendant intends to confine the plaintiff.
- The plaintiff is conscious of the confinement.
- The plaintiff does not consent to the confinement.
- The confinement was not otherwise privileged.
Defenses
Child correction
Depending on the jurisdiction, corporal punishment of children by parents or instructors may be a defense to trespass to the person, so long as the punishment was "reasonably necessary under the circumstances to discipline a child who has misbehaved" and the defendant " prudence and restraint". Unreasonable punishments, such as violently grabbing a student's arm and hair, have no defense. Many jurisdictions, however, limit corporal punishment to parents, and a few, such as New Zealand, have criminalized the practice.Consent
Perhaps the most common defense for the torts of trespass to the person is that of volenti non fit injuria, literally, "to a willing person, no injury is done", but shortened to "consensual privilege" or "consent". If a plaintiff participates in a sporting activity in which physical contact is ordinary conduct, such as rugby, they are considered to have consented. This is not the case if the physical contact went beyond what could be expected, such as the use of hand gun during a fistfight, as in Andrepont v Naquin, or where the injuries were suffered not from the plaintiff's participation in the sport but inadequate safety measures taken, as in Watson v British Boxing Board of Control Ltd. Where the plaintiff and defendant voluntarily agree to participate in a fight, some jurisdictions will deny relief in civil action, so long as the injuries caused are proportionate: "in an ordinary fight with fists there is no cause of action to either of for any injury suffered". Other jurisdictions refuse to recognize consent as a defense to mutual combat and instead provide relief under the doctrine of comparative negligence.Medical care gives rise to many claims of trespass to the person. A physician, "treating a mentally competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient". Should he do so, he commits a trespass to the person and is liable for damages. However, if the plaintiff is informed by a doctor of the broad risks of a medical procedure, there will be no claim under trespass against the person for resulting harm caused; the plaintiff's agreement constitutes informed consent. In those cases where the patient does not possess sufficient mental capacity to consent, doctors must exercise extreme caution. In F v West Berkshire Health Authority, the House of Lords instructed British physicians that, to justify operating upon such an individual, there " must ... be a necessity to act when it is not practicable to communicate with the assisted person ... the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person".